U.S. Justice John Paul Stevens to retire

The New York Times has an article on what everyone watching the Supreme Court was getting the sense was going to happen.

Like it is with many dedicated court watchers, Justice Stevens had become my favorite justice many years ago, as the court changed composition from a respected bench to something that really makes you wonder about the future of our country. Additionally, Stevens represented a kind of integrity and sensibility in the Republican Party that is simply not there, in it, anymore.

As a bit of personal trivia, one of my two cases along the years, Frederick W. Gundlach v. Robert J. Reinstein, received an honorable mention of sorts in a footnote to Stevens’ Gonzaga dissent. Gonzaga was a case that threw out the well established holding that FERPA supported a Section 1983 action in federal court. (Plain English: college officials could be held liable for money for violating students’ privacy, in instances where they release or purport to release student records without consent.)

In my case, which was a breach of contract action, Temple’s attorney made things up about [other] things that were allegedly in my student records at the law school. (In fact, they weren’t!) So I included FERPA in the pleadings.

It was a clear FERPA violation, and the case law supported me, but the U.S. District Court judge, Curtis Joyner, did not. He wrote a novel reason (basically, the excuse given by Temple attorney Carl Hittinger of Ballard, Spahr, Andrews and Ingersoll) into the FERPA law—that the release of education records had to be as a result of a written “policy”. (In other words, if I take something from you unfairly, you can’t claim against me unless you can show that I have a written policy that I take things from you.)

So by the time of Gonzaga (about 10 years later), there continued to be numerous cases that supported view, and only two (my case and another) that was against.

Stevens pointed out that there was basically no division in the courts on FERPA:

To justify its statement that courts are “divided,” ante, at 3, concerning FERPA’s enforceability under §1983, the Court cites only two cases disagreeing with the overwhelming majority position of courts reaching the issue. See ante, at 3, n. 2 (citing Gundlach v. Reinstein, 924 F. Supp. 684 (ED Pa. 1996), aff’d, 114 F. 3d 1172 (CA3 1997), and Meury v. Eagle-Union Community School Corp., 714 N. E. 2d 233, 239 (Ind. Ct. App. 1999)). And Gundlach did not even squarely hold that FERPA rights are unenforceable; rather, the court merely rejected a claim under §1232 in which the plaintiff “failed to allege that Defendants released the alleged educational records pursuant to university policy,” 924 F. Supp., at 692.

Not exactly Brown v. Board of Education, but it shows how crappy legal reasoning has an impact. The Gonzaga case ruled against students' rights under this Section 1983. Courts then began using the Gonzaga decision to decline other cases against “state actors”, mostly over Medicaid payments. And the thinking out of some commenters (links later) is that current Chief Justice Roberts, who had been involved as an attorney in the Gonzaga case, want to use the Gonzaga logic to wipe out Maine v. Thiboutot, a 1980 Supreme Court case that defined modern Section 1983 law. More about that later.

As well, I am going to blog a bit more about this news in the coming week.